User agreement

End user licence agreement

Please read this EULA carefully, as it sets out the basis upon which you are permitted to use our platform and software.

1.By clicking "accept agreement" when you first sign up to our services, you agree to be bound by the provisions of this EULA.

By agreeing to be bound by this EULA, you further agree that your employees, partners, affiliates, or any other persons you authorise to use our services will comply with the provision of this EULA.

AGREEMENT

2. Definitions

2.1 Except to the extent expressly provided otherwise, in this EULA:

"Charges" means [those amounts that the parties have agreed in writing shall be payable by the User to the Licensor in respect of this EULA];

"Documentation" means [the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User];

"Effective Date" means [the date upon which the User gives the User's express consent to this EULA, following the issue of this EULA by the Licensor];

"EULA" means [this end user licence agreement, including any amendments to this end user licence agreement from time to time];

"Force Majeure Event" means [an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]);

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Licensor" means Smileszy having it’s registered office at: [ Enter address here]

"Licensor Indemnity Event" has the meaning given to it in Clause 13.1;

"Maintenance Services" means the [supply to the User] OR [application to the Software] OR [supply to the User and application to the Software] of Updates and Upgrades;

"Minimum Term" means, in respect of this EULA, the period of 12 months beginning on the Effective Date or for the duration which the plan the user has selected;

"Services" means any services that the Smileszy provides to the User, or has an obligation to provide to the User, under this EULA;

"Software" means the Smileszy platform;

"Support Services" means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise;

"Term" means the term of this EULA, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;

"Upgrade" means a major version upgrade of the Software;

"User" means the person to whom the Licensor grants a right to use the Software under this EULA; and

"User Indemnity Event" has the meaning given to it in Clause 13.3.

3. Term

3.1 This EULA shall come into force upon the Effective Date.

3.2 This EULA shall continue in force indefinitely until the user is subscribed to our services

4. Licence

4.1 Smileszy hereby grants to the User from the date of supply of the Software to the User until the end of their subscription a licence to:

(a) use our platform;

(b) [use[ [a single instance] of] the Software[ in accordance with the Documentation]]; and

subject to the limitations and prohibitions set out and referred to in this Clause 4.

4.2 The User may not sub-license and must not purport to sub-license any rights granted under Clause 4.1 without the prior written consent of Smileszy. Any such sub-licence shall automatically terminate upon the termination of the licence in Clause 4.1.

4.3 Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 4 shall be subject to the following prohibitions:

(a) the User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute any parts of the platform or software;

(b) the User must not alter, edit or adapt the Software; and

(c) the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.

5. Source Code

5.1 Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.

6. Maintenance Services

6.1 Smileszy shall provide the Maintenance Services to the User during their usage of Smileszy’s platform and software.

6.2 The Licensor shall provide the Maintenance Services with reasonable skill and care

6.3 The Licensor warrants to the User that the application of Updates and Upgrades to the Software by the Licensor will not introduce any Software Defects into the Software.

6.4 The Licensor warrants to the User that the application of Updates and Upgrades to the Software by the User in accordance with the instructions of the Licensor will not introduce any Software Defects into the Software.

6.5 The Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

6.6 If the Licensor stops or makes a good faith decision to stop providing maintenance services in relation to the Software to its customers generally, then the Licensor may terminate the Maintenance Services by giving at least [90 days'] written notice of termination to the User.

6.7 If the Maintenance Services are terminated in accordance with the provisions of this Clause 6:

(a) the User must pay to the Licensor any outstanding Charges in respect of Maintenance Services provided to the User before the termination of the Maintenance Services;

(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Maintenance Services that were to be provided to the User after the termination of the Maintenance Services; and

7. Support Services

7.1 The Licensor shall provide the Support Services to the User during the duration of their subscription period.

7.2 The Licensor may suspend the provision of the Support Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

7.3 Either party may terminate the Support Services by giving to the other party

7.4 If the Support Services are terminated in accordance with the provisions of this Clause 7:

(a) the User must pay to the Licensor any outstanding Charges in respect of Support Services provided to the User before the termination of the Support Services;

(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Support Services that were to be provided to the User after the termination of the Support Services; and

8. No assignment of Intellectual Property Rights

8.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.

9. Charges

9.1 The User shall pay the Charges to the Licensor in accordance with this EULA.

9.2 All amounts stated in or in relation to this EULA are, unless the context requires otherwise, stated inclusive of any applicable value added taxes

10. Payments

10.1 The Licensor shall issue invoices for the Charges to the User when requested.

10.2 The User must pay the Charges to the Licensor in advance following the issue of an invoice in accordance with this Clause 10. The users payment method will automatically be charged on the selected date of each month.

10.3 The User must pay the Charges by debit card, credit card, direct debit, bank transfer.

10.4 If the User does not pay any amount properly due to the Licensor under this EULA, the Licensor may:

(a) charge the User interest on the overdue amount

(b) cancel the User’s access to the Smileszy platform

11. Indemnities

11.1 The Licensor shall indemnify and shall keep indemnified the User against any and all liabilities, damages, losses, costs and expenses including legal expenses and amounts reasonably paid in settlement of legal claims suffered or incurred by the User and arising directly or indirectly as a result of any breach by the Licensor of this EULA.

11.2 The User must:

(a) upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;

(b) provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;

(c) allow the Licensor the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and

(d) not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor,

11.3 The User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses including legal expenses and amounts reasonably paid in settlement of legal claims suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of this EULA.

11.4 The Licensor must:

(a) upon becoming aware of an actual or potential User Indemnity Event, notify the User;

(b) provide to the User all such assistance as may be reasonably requested by the User in relation to the User Indemnity Event;

(c) allow the User the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the User Indemnity Event; and

(d) not admit liability to any third party in connection with the User Indemnity Event or settle any disputes or proceedings involving a third party and relating to the User Indemnity Event without the prior written consent of the User,

12. Limitations and exclusions of liability

12.1 Nothing in this EULA will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(d) exclude any liabilities that may not be excluded under applicable law,

and, if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.

12.2 The limitations and exclusions of liability set out in this Clause 12 and elsewhere in this EULA:

(a) are subject to Clause 12.1; and

(b) govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.

14.3 The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.

14.4 The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.

14.5 The Licensor will not be liable to the User in respect of any loss of revenue or income.

14.6 The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.

14.7 The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.

14.8 The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.

15. Termination

15.1 The Licensor may terminate this EULA by giving to the User 30 days' written notice of termination, expiring at the end of any calendar month.

15.2 The User may terminate this EULA by giving to the Licensor 30 days' written notice of termination, expiring at the end of any calendar month.

15.3 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a) the other party commits any breach of this EULA, and the breach is not remediable;

(b) the other party commits a breach of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied.

15.4 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this EULA)]; or

(d) [if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii) that other party is the subject of bankruptcy.

15.5 The Licensor may terminate this EULA immediately by giving written notice to the User if:

(a) any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b) the Licensor has given to the User at least 30 days' written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Clause 15.5.

16. Effects of termination

16.1 Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect.

16.2 Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.

16.3 Within 30 days following the termination of this EULA for any reason:

(a) the User must pay to the Licensor any Charges in respect of Services provided to the User before the termination of this EULA and in respect of licences in effect before the termination of this EULA; and

(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Services that were to be but are not provided to the User after the termination of this EULA and in respect of licences that were to be but are not in effect after the termination of this EULA,

17. General

17.1 No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

17.2 If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

17.3 This EULA may not be varied except by a written document signed by or on behalf of each of the parties.

17.4 The User hereby agrees that the Licensor may assign the Licensor's contractual rights and obligations under this EULA to. The User must not without the prior written consent of the Licensor assign, transfer or otherwise deal with any of the User's contractual rights or obligations under this EULA.

17.5 This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.

17.6 Subject to Clause 14.1, this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

17.7 This EULA shall be governed by and construed in accordance with English law.

17.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.